Unauthorized occupation of public land
This policy describes how the Ministry of Natural Resources will manage public land to remove and prevent unauthorized occupations.
Subject: Unauthorized occupation of public land
Policy: PL 3.03.02
Compiled by: Branch: Crown Forests and Lands Policy Branch
Section: Crown Lands Policy Section
Date Issued: September 17, 2020
Replaces directive title: Unauthorized occupation of public land
Number: same
Date Issued: April 5, 2007
1.0 Introduction
The Ministry of Natural Resources (MNR) is responsible for the management of public lands that make up approximately 77% of the province. Unauthorized occupations of public land can significantly impact the ministry’s ability to effectively manage land as a public resource.
The purpose of this policy and associated procedure is to describe how the ministry may prevent and resolve unauthorized occupations of public land, including using provisions found in the Public Lands Act, R.S.O. 1990. c. P.43 (“PLA”).
Unauthorized occupations can impact the public’s enjoyment of public land and may result in significant risks to the environment and public safety. They have the potential to result in financial burden to the Crown while impairing the ministry’s ability to ensure a fair return to the public of Ontario for the legal use and occupation of public land. Unauthorized occupation of public land that would otherwise be a source of Crown revenue is unfair to individuals legally occupying these lands who pay for this privilege, as well as to the general public.
When individuals illegally use or occupy public land, ministry staff may take compliance action to resolve these situations, including in some circumstances, selling or removing unauthorized buildings or things pursuant to powers set out in the PLA. Efforts may be prioritized on the prevention and resolution of those unauthorized occupations that pose the highest risks to the environment, public safety, or government finances.
2.0 Defining an unauthorized occupation of public land
An unauthorized occupation of public land exists where the occupant or activity does not:
- have the required permission or authority to use or occupy public land pursuant to the PLA (e.g., land use permit, lease, licence of occupation, easement) or no longer has the required permission or authority to use or occupy public land pursuant to the PLA (e.g., previous permission has expired or is no longer in good standing)
- meet the criteria set out in Ontario Regulation 161/17 Occupation of Public Lands under Section 21.1 of the Act
- have authority to use or occupy public land that has been granted pursuant to other legislation (e.g., Mining Act, R.S.O. 1990, c. M.14).
Despite the above, if the occupation is necessary or incidental for the exercise of Aboriginal or Treaty rights, the occupation is not unauthorized, and this policy should not be applied.
3.0 Guiding principles
This policy is underpinned by four principles that support natural resource management decisions when managing unauthorized occupations of public land. These principles are as follows:
- Public land should be managed to ensure that public enjoyment of public land is not adversely impacted by unauthorized occupations.
- Prevention is the preferred approach to reducing unauthorized occupations of public land in Ontario.
- In fairness to the public and public land tenants, Ontario should receive fair compensation for the disposition of public land.
- The ministry should ensure that unauthorized occupations are resolved within 60 years so that the ministry is not barred from recovering the lands, per the Real Property Limitations Act, R.S.O. 1990. C.L.15.
4.0 Objectives
Objective 1) To provide clear policy and procedural direction that results in consistent application of the PLA when addressing unauthorized occupations of public land across Ontario.
The following approaches may be used to achieve this objective:
- Identify relevant PLA provisions that may be used to address unauthorized occupations and provide procedural direction for their implementation.
- Ensure consistent application of the PLA provisions related to unauthorized occupations by maintaining a current and clear procedure.
Objective 2) To prevent new unauthorized occupations of public land.
The following approaches may be used to achieve this objective:
- Clearly communicate how the public can legally use or occupy public land so that the public has knowledge of how they can be in compliance.
- Continue to maintain records of who has authority to use or occupy public land to reduce the number of authorized occupations that become unauthorized.
- Prevent authorized occupations of public land from becoming unauthorized occupations by completing post disposition requirements.
Objective 3) To seek efficient resolutions to unauthorized occupations of public land.
The following approaches may be used to achieve this objective:
- Seek timely resolutions to unauthorized occupations, where possible, by using the most efficient and effective provisions of the PLA to resolve unauthorized occupations.
- The ministry may seek resolutions of unauthorized occupations using the relevant provisions in PLA. See Section 5.0 of this policy for the relevant PLA provisions.
Objective 4) To limit the number of unauthorized occupations that result in the loss of public land ownership.
The following approaches may be used to achieve this objective:
- Consider other methods of resolution prior to disposition, to reduce of the number of unauthorized occupations that are resolved through disposition.
- Preserve the Crown’s right to recover land by resolving unauthorized occupations. The ministry must bring any action for recovery of land within 60 years. See PL 2.02.01 Quit Claim Letters Patent. This may reduce the occurrence of unauthorized occupations on public land, particularly by decreasing the number that would result in protection under the Real Property Limitations Act after 60 years.
- Disposition of public land is in accordance with PL 4.02.01 Application Review and Land Disposition Process policy and procedure.
Where a decision has been made to resolve the unauthorized occupation through disposition of public land, consider if the scenario would be appropriate for the use of penalties set out in section 26 of the PLA to discourage unauthorized occupations as a method of attaining occupational authority.
5.0 Public Lands Act provisions relevant to resolution of unauthorized occupation of public land
While more detailed criteria for the use of each authority is outlined in the procedure that accompanies this policy (PL 3.03.02), the following sections of the PLA may be used to resolve unauthorized occupations:
- 24(2) Minister may apply for court order as a mode of obtaining possession of public lands where the occupier had prior occupational authority for the subject lands or where a person is in possession or occupation of lands without lawful authority (e.g., expired or cancelled Land Use Permit)
- 24(3) Minister’s warrant as a mode of obtaining possession of public lands where the occupier has never held occupational authority for those lands being occupied
- 24(4) where buildings or things that remain on public land after the expiration of occupational authority may be removed by the Minister
- 27(2) materials, substance or things may be removed where they were deposited without authority by the Minister
- 27.1(1) where personal property has been lost, mislaid or abandoned and has been unclaimed for three months
Subsection 26(1) allows the ministry to impose a monetary penalty where a person enters into possession of public lands without lawful authority and builds or makes any improvements thereon. A penalty under this section may be recoverable through the courts, if necessary (unpaid).
The act provides the authority for prosecution of unauthorized occupations in the following sections:
- 27(1) regarding material, substance or things deposited on public land without authority (offence is established in section 70.3)
- 28(3) regarding contravention of a notice
- 69.1(2) regarding compliance with the terms and conditions in an agreement or permit (e.g., occupational authority document)
- Ontario Regulation 239/13 subsection 2(1) regarding the construction or placement of a building on public land without a work permit (offence is established in section 70.3)
Section 70.3(5) provides that, upon conviction, a court may order a person to come into compliance with the act.
A district manager may decide to resolve an unauthorized occupation through disposition of public lands to the occupant, provided that, in the opinion of the district manager the disposition would not be giving preferential treatment, or encouraging future unauthorized occupations as a means of seeking authority. Dispositions under the PLA must comply with PL 4.02.01 Application Review and Land Disposition Process policy and procedure.
6.0 Directive cross references
- PL 2.02.01 Quit Claim Letters Patent
- PL 3.03.02 Unauthorized Occupations of Public Land Procedure
- PL 4.02.01 Application Review and Land Disposition Process Policy and Procedure